· “Marlise Richter, head of policy at Sonke Gender Justice, wrote a letter to #UniteBehind coalition members arguing that it was a mistake to take action against Achmat. Sonke has been at the forefront of gender rights activism in South Africa for 12 years”; and

· “But [Sonke] has also faced allegations of same-sex sexual harassment in its own structures. In June, the M&G revealed that an employee at Sonke had been investigated, and was in 2015 dismissed, for harassment.”

· a decision by the organisation that the suspension of prominent gender justice activist Zackie Achmat was a mistake; and

· an attempt to protect Achmat – while Sonke itself supposedly (but falsely stated as such) had skeletons in its cupboard about sexual harassment in its own workplace.

The organisation adds that the publication did not apologise for a mistake in an earlier version of the article, and submits that the reportage has unfairly cast damaging aspersions on its reputation.

Peacock and van Nierkerk ask for a reprimand, a correction, an apology, and the right to reply to the article (to be circulated through all the M&G’s platforms).

The text

The article said that a coalition of non-governmental organisations, known as #UniteBehind and including SGJ, has decided that Achmat should “step back” from involvement in #UB following allegations that he was involved in a sexual harassment cover-up for his close friend, Mr Doron Isaacs. The latter was accused of sexually harassing at least two women at Equal Education, an education NGO that he had co-founded.

Citing Richter, Pather wrote that SGJ had objected to this decision.

The journalist reported that Richter, who represented SGJ on #UB but was absent when the committee decided against Achmat’s full involvement in its operations, wrote to coalition members, arguing it was “a mistake” to take action against Achmat and that #UB had failed to “adequately grapple” with questions of “justice and due process”.

Her letter came after Mr Rob Petersen, a veteran activist, withdrew from a #UB event in protest against the organisation’s decision against Achmat, describing the decision as being based on “panicked by scurrilous social media chatter”. Richter reportedly supported Petersen’s views, and attached his letter to her own.

When asked about Sonke’s view on the allegations against Achmat and his exclusion from some #UniteBehind roles, Richter replied: “There is no Sonke position on the matter.”

The reporter stated that SGJ itself has also faced allegations of same-sex sexual harassment in its own structures, and that two out of SGJ’s seven main funders have suspended financial support for the organisation.

In a footnote, the M&G wrote: “A previous version of this article said that Sonke is battling sexual harassment claims and that employees had been investigated. The article has since been amended for accuracy.”

The arguments

Peacock and van Niekerk say that, from Richter’s message, it was clear that she:

· was absent when the decision was taken;

· was raising questions about the meaning of the decision;

· was speaking her own mind;

· had not adopted a final position on the matter; and

· did not intend conveying a formal Sonke position, but rather to open up a discussion within the committee about her concerns.

They deny that this could be interpreted as an “objection” from Sonke against the action taken against Achmat, as portrayed in the article.

They add that, notwithstanding the earlier claim that Sonke was “raising objections” about Achmat’s partial suspension, Pather then contradicted herself when quoting Richter as saying that Sonke “no position on the matter”.

Peacock and van Niekerk argue that this did not undo the damage done by the earlier misrepresentation. “Readers had by then already been told, in no uncertain terms, that Sonke ‘objected’ to the #UB decision on Achmat since Richter, who represents Sonke, had ‘argued that it was a mistake’,” they argue.

The complainants say the problem was compounded by the paragraph immediately following, which stated that Sonke had also faced allegations of same-sex sexual harassment in its own structures. “In context, the statement infers that Sonke is protecting Achmat because Sonke itself supposedly has skeletons in its cupboard about sexual harassment in its own workplace,” they argue.

They say the original version of the article was even more problematic, stating that Sonke “is battling sexual harassment claims and that employees have been investigated”. They assert that this implied that Sonke was struggling to manage sexual harassment in its own ranks.

In this regard, Peacock and van Niekerk explain that a staff member faced charges of harassment – and was suspended, investigated, faced a formal disciplinary hearing chaired by an external labour law expert and dismissed after due process, all within 30 working days. “The M&G might more accurately have reported that Sonke has demonstrated its commitment to addressing sexual harassment and that its staff have demonstrated their confidence in the systems put in place by virtue of the fact that they have used them,” they argue.

They add that, while the editor did the right thing in correcting its earlier damaging misrepresentation, the M&G did not offer any apology to Sonke.

The end-result of the reportage, the complainants say, created the damaging perception that Sonke did not take sexual harassment seriously – and that it had an organisational culture that tolerated such behaviour.

“This has curtailed the important work that it does on building the public education system in South Africa, and has damaged its reputation – without any findings about the panels of inquiry yet. To remain viable, secure funding and achieve impact NGOs work hard to demonstrate that they embody the values they espouse. Their good reputation is essential to their sustainability. Allegations that an NGO allows or, worse yet, covers up sexual harassment, are extremely serious and, when accurate, appropriately call into question its good standing,” they conclude.

Tromp says that the article relied partly on communication between representatives from the various NGOs on a WhatsApp platform. Critically, the WhatsApp group comprised of members of #UniteBehind’s Co-ordinating Committee, which is acknowledged by Sonke and is therefore common cause.

He says Richter represented SGJ on #UniteBehind, and argues that her participation in this group was specifically because of her position within SGJ as its representative. “It is therefore disingenuous to suggest that her objections, which are clearly stated in her message to the rest of the co-ordinating committee, was done in her personal capacity,” he argues.

He adds that the message conveyed by Richter to the rest of the #UB co-ordinating committee as a letter, as opposed to a WhatsApp message, did not materially alter the facts or impact of the message.

Moreover, the M&G sought, and published, SGJ’s position on the “step back” decision, he adds.

The deputy editor also argues that Richter’s words, stating that #UniteBehind had failed to “adequately grapple” with questions of “justice and due process”, should not be interpreted in isolation. It rather followed a long and detailed objection from Petersen against the treatment meted out to Achmat, lamenting the lack of justice and due process followed in arriving at the “step back” decision by #UB. “Richter very specifically and quite plainly voices her objection to the action taken against Achmat,” he adds.

Tromp concludes that, contrary to Sonke’s reading of the article, the M&G “clearly and evenly conveyed the discussion, including objections, raised within #UniteBehind. It is not uncommon for organisations to publically relay one message and privately forward another. The contradiction, as reported, is with Sonke”.

Peacock and van Niekerk reply that the M&G’s response to their complaint rests on the premise that Richter’s Whatsapp message has:

· constituted formal correspondence; and

· articulated a formal position by Sonke on the Achmat decision.

They say that the #UB forum was a prolific discussion platform that included 53 participants, and constituted over twenty organizations. Various individuals representing these organisations, and some who did not, were included in this group.

They say it is impossible to view the circulation of thousands of pieces of information, opinions, political analyses and conversations as constituting formal correspondence of an individual or an organization – unless, of course, this is explicitly stated as such in the message circulated.

Besides, they say, not only did Richter’s Whatsapp message not state that she was communicating in an official capacity, but it was also written in the first person – which indicated a personal opinion.

They add that Richter was not a member of Sonke’s senior management team (SMT), and did not have the institutional mandate or decision-making power to articulate Sonke’s position on #UB’s decision on Achmat. “Such decisions can only be made by Sonke’s SMT after proper organizational decision-making processes were followed. In topical and complex matters such as sexual harassment, these issues would likely be canvassed and debated in the organization as a whole before an organisational position is formulated,” they assert.

As this process has not yet taken place, they continue, Sonke still does not have an official position on the matter (as stated by Richter in her reply to Pather).

They also deny any contradiction on Sonke’s part, and laments the impression created by the M&G that Sonke has been deceitful in its engagement with #UB and its answers to the questions posed by Pather.

Analysis

A ‘mistake’

The first issue is if it was reasonable to state that Richter in fact argued that #UB’s decision to take action against Achmat was “a mistake”, as stated in the story.

For this, I need to study Richter’s Whatsapp message carefully, as well as the content of Petersen’s correspondence.

She started off her message by explaining that she had been absent when the committee had taken the Achmat decision; she then said that Petersen had articulated “some really important points about the complexities faced by #UB and [other] sexual harassment cases, the lack of info and facts available, and the indefinite time period”.

She followed this up by asking for clarification (she used this word) about the decision regarding Achmat’s work within #UB; she also wanted to know if the issues had been discussed at the CC meeting, or if they still had to be decided.

More specifically, Richter wanted to know:

· what “stepping back” had entailed and what “essential work” had entailed;

· if Achmat had been removed from #UB’s leadership and if that had included that he would have had no input into strategic direction or implementation of programmes;

· what #UB’s organisational position had been toward media articles about objectionable actions in the past about any of its members, and suspending members while investigative processes had been instituted; and

· if it had been a policy decision.

Referring to the relevant minutes of the decision, she concluded that Petersen had raised important questions about justice and due process “that I do not think we have adequately grappled with”.

In correspondence with #UB, Petersen distanced himself from the Achmat decision which, he said, had been taken on “entirely insubstantial grounds”. He claimed there was no concrete justification for the decision and noted that the “complaints” had not been specified. He accused #UB of presuming Achmat to be guilty, instead of innocent.

For the record, the minutes of the decision read as follows: “Decision: Based on our discussion this meeting decided that Zackie can only be involved in the essential work of #UB that is dependent on his involvement pending the outcome of the EE inquiry. This decision to ask Zackie to step back is based on #UBs responsibility to be victim-centred and to send a clear message that we take the allegations seriously while at the same time leaving room for the EE inquiry to run its course and to ensure that the important work of #UB continue. The Chair of this meeting to communicate the decision with Zackie as soon as possible.”

With this documentation at my disposal, I am now returning to Richter’s Whatsapp message. I believe it was reasonable to deduct from it that she had some reservations about the Achmat decision – which, in itself, did not mean that she had already made up her mind on the issue. If she had, her request for clarity would have been meaningless. In fact, she even was unsure if the issue had been discussed at the committee meeting, or if it still was a matter that should be decided upon.

Pather erred by jumping to the unfortunate conclusion that Richter’s reservations amounted to an opinion that the Achmat decision was wrong. It is possible that Richter, at a later stage, could come to such a conclusion – depending on the kind of clarity that she gets – but to state that she had already made such a decision certainly was premature.

This argument is substantiated by Richter’s own comment on this matter, namely that there was “no Sonke position on the matter”.

Within this context, this also implies that Richter did not necessarily agree with Petersen’s objections – the clarity which she was looking for would determine the outcome of her own decision on this matter.

‘Personal’, or ‘official’

Richter was SGJ’s official representative on #UB; as far as I am concerned, this was not just a “personal” enquiry – she asked those questions in her capacity as Sonke’s representative (as she was absent at an official meeting where the decision was taken, and wanted to be informed about the nature of that decision).

Therefore: I understand her Whatsapp message not as a “personal” message, but also not as one communicating Sonke’s position on the matter either. It rather was an official communication, as SGJ’s representative, asking for clarification on the matter – nothing more, and nothing less.

Own skeletons in cupboard

The paragraph in dispute read: “But [Sonke] has also faced allegations of same-sex sexual harassment in its own structures. In June, the M&G revealed that an employee at Sonke had been investigated, and was in 2015 dismissed, for harassment.”

These sentences followed immediately after the one in which Pather alleged Richter’s “opinion” that #UB had made a mistake.

The complainants’ arguments in this regard is understandable. On the other hand, the statements in question were both accurate.

In the end, I believe it was left to readers to decide for themselves how to interpret these facts. I therefore do not agree that the reportage has necessarily created the perception that Sonke did not take sexual harassment seriously, or that it had an organisational culture that tolerated such behaviour. While it could have been interpreted in such a way, it was not the only interpretation possible – the fact also remains the M&G did report that Sonke had (successfully) acted against one such instance where sexual harassment took place in its own midst.

No apology

I would have preferred the M&G to at least say it was sorry for the error – but, on the other hand, kudos to the publication for setting matters straight. I do not believe that the lack of an apology warrants a finding that the newspaper had breached the Press Code for not doing so.

Damage to reputation

Based on my arguments above, I do not agree that reasonable readers would necessarily have inferred from the reportage that Sonke did not take sexual harassment seriously, or that it had an organisational culture that tolerated such behaviour.

Finding

The article falsely and misleadingly said that Richter, in her Whatsapp message to #UB, “[argued] that it was a mistake to take action against Achmat”, creating the wrong impression that she – and Sonke – had objected to that decision.

This was in breach of Section 1.1 of the Press Code that says: “The media shall take care to report news truthfully, accurately and fairly.”

The rest of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).

The breach of the Press Code as indicated above is a Tier 2 offence.

Sanction

The M&G is directed to apologise to Sonke Gender Justice for falsely and misleadingly reporting that Richter, in her Whatsapp message to #UB, “[argued] that it was a mistake to take action against Achmat”, creating the wrong impression that she – and Sonke – had objected to that decision.

The newspaper is directed to publish the apology on top of the offending (online) article, as well as on all other platforms where this statement was carried, with a headline containing the words “apology” or “apologises”, and “Sonke Gender Justice”.

The text should:

· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;

· stay on the relevant sites for as long as the story itself is carried there; and

· be prepared by the publication and be approved by me.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.